In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a “pause” to demonstrate absence of human intervention.
Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the line” that led her to believe the call was made using an ATDS, which she refers to as a “robocall.” Doc. 18 ¶ 42. Everest argues that this fails to meet the TCPA’s requirements, attempting to distinguish cases that call for surrounding circumstances, such as a “click and pause,” from the verbiage that Mauer used—“a noticeable pause.” See Martin, 2015 WL 4148704, at *2 (quoting Johansen, 2012 WL 6590551, at *3). The lack of a click does not take away from the plausibility of the facts that Mauer has alleged, particularly where the language she uses is so similar to that found sufficient in Oliver—a “momentary pause.” See Oliver, 2015 WL 1727251, at *3. Mauer has done more than merely attribute her claim to modern day practices, sufficiently basing her allegations that John Doe used an ATDS on reasonable facts that would be available to a plaintiff prior to discovery. Cf. Schlotfeldt, 2016 WL 406341, at *5 (dismissing TCPA claim for failure to plead more than conclusory allegation of use of ATDS). Thus, her claim survives AIU’s and Everest’s motions to dismiss.
In a separate opinion, the Court found that the class definition was a fail-safe definition, but deferred striking the class allegations to allow the Plaintiff to amend the definition. Mauer v. American Intercontinental University, Inc., 2016 WL 4698665, at *3 (N.D.Ill., 2016)
AIU first asserts that the Court should strike Mauer’s class allegations because Mauer seeks to represent an impermissible fail-safe class. A fail-safe class is “one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). Fail-safe classes are problematic “because a class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.” Id. To avoid fail-safe problems, class membership should “not depend on the liability of the defendant.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015). AIU argues that Mauer’s class definition is a classic example of a fail-safe class because it includes only those individuals who “did not previously provide express written consent to be contacted.” Doc. 18 ¶ 60. Because a lack of consent is a requirement for liability under the TCPA, AIU argues that the proposed class depends on Defendants’ liability and so is an impermissible fail-safe class. See Sauter v. CVS Pharmacy, Inc., No. 2:13-cv-846, 2014 WL 1814076, at *9 (S.D. Ohio May 7, 2015) (reviewing cases addressing whether proposed TCPA classes defined to include individuals who did not provide express consent qualified as fail-safe classes and finding that such classes are impermissible); see also Dixon v. Monterey Fin. Servs., Inc., No. 15-cv-03298-MMC, 2016 WL 3456680, at *4 (N.D. Cal. June 24, 2016) (finding a class defined to include only those who received a call without prior express written consent to be an improper fail-safe class because only those who prevailed on liability would be class members). But see Waterbury v. A1 Solar Power Inc., No. 15cv2374-MMA(WVG), 2016 WL 3166910, at *4–5 (S.D. Cal. June 7, 2016) (finding that TCPA class defined to include persons who had not provided telephone number to defendants or for whom defendants did not have a record of express written consent was not a fail-safe class); Wolfkiel v. Intersections Ins. Servs. Inc., 303 F.R.D. 287, 294 (N.D. Ill. 2014) (refusing to find that no-consent class qualified as a fail-safe class at the motion to strike stage). Mauer responds that her proposed class is not a fail-safe class because Defendants should have lists of the individuals they called and who provided consent to those calls, although such allegations are not included in her amended complaint. But to the extent that the Court finds her proposed class to be an impermissible fail-safe class, Mauer proposes that the class definition be amended to include anyone who received a call, regardless of consent. The Court agrees that, as currently defined, Mauer’s class poses fail-safe problems: whether an individual qualifies as a class member turns on consent and so membership in the class depends on the presence of a valid claim against Defendants. See Olney v. Job.com, Inc., No. 1:12-CV-01724-LJO-SKO, 2013 WL 5476813, at *11 (E.D. Cal. Sept. 30, 2013) (“Because the TCPA prohibits calls to cellular telephones using ATDSs unless prior express consent has been given, defining the class to include anyone who received such a call without prior express consent means that only those potential members who would prevail on this liability issue would be members of the class.”). Thus, in including parties who had not previously provided express written consent, only class members would be bound by a judgment favorable to Mauer. Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir.1980). The use of a fail-safe class, however, does not preclude Mauer from moving forward with her class allegations against AIU. See Messner, 669 F.3d at 825 (“Defining a class so as to avoid, on one hand, being overinclusive and, on the other hand, the fail-safe problem is more of an art than a science. Either problem can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis.”); Van v. Ford Motor Co., No. 14 cv 8708, 2016 WL 1182001, at *8 (N.D. Ill. Mar. 28, 2016) (declining to strike fail-safe class definition where plaintiffs had not yet moved to certify the purported class and instead considering the class definition “a placeholder for plaintiffs to seek certification if it becomes appropriate to do so”); Wolfkiel, 303 F.R.D. at 294 (possible existence of fail-safe class was not a basis to strike class allegations prior to certification stage). Rather, the Court will allow Mauer to amend her class definition, either now or when she moves for class certification to remove the fail-safe problem identified here. See Chapman v. First Index, Inc., 796 F.3d 783, 785 (7th Cir. 2015) (noting that Rule 15 requirements for amendment of pleadings do not apply to class definitions but that it was not an abuse of discretion for district court to require plaintiffs to propose class definition at an early practicable time and not attempt to revise definition over four years into the litigation).